Indiana Co-Op. Canal Co. v. Gray , 1916 Tex. App. LEXIS 215 ( 1916 )

FLY, C. J.

Appellee sued the Indiana Cooperative Canal Company, E. F. Rowson, E. C. Shireman, and A. C. Swanson for damages in the sum of $4,000, alleged to have arisen hy -virtue of appellants and A. C. Swanson, who is not a party to this appeal, having negligently constructed this canal so that water escaped through the embankment into and upon the land of appellee and rendered it worthless. The cause was submitted on special issues, and upon the answers thereto, given by the jury, judgment was rendered in favor of appellee against appellants for $2,516.68, and in favor of A. C. Swanson as against appel-lee.

The evidence indicates that water seeped through appellants’ embankment on the land of appellee, and either by some mineral in the water, or the solution and development of mineral contained in the land, the vegetation on the land was destroyed, and it was rendered unfit for immediate agricultural purposes.

[1] In this case appellee recovered the full value of the land on the proposition that the value was totally destroyed. The court submitted the following issue:

“What was the reasonable market value of plaintiff’s land immediately after the accomplishment of the act complained of in plaintiff’s petition, namely, seeping of plaintiff’s land as therein alleged?”

The answer of the jury was not responsive to the question; for, instead of stating that the land had no market value, the evasive answer was given:

“No immediate market value for agricultural purposes.”

The land had never been used for agricultural purposes, but was uncultivated land covered with grass, cactus, and mesquite trees. The question was broad enough to cov* er the market value for all purposes, as it should have done, but the jury did not answer it, and the answer was not full enough to form the basis for a judgment. The answer did not meet the issue, and it can be clearly inferred from it that the jury believed that the land did have a market value for purposes other than that of agricultural, and even in a short while value for that purpose. There should be a definite, clear answer to such an issue before appellee can be permitted to recover the full value of the land and have the land also. It may be, as said in Railway v. Wallace, 74 Tex. 581, 12 S. W. 227, that the owner of land has the right to have his damages measured by the extent of the injury to the land used for any lawful purpose. to which he might desire to appropriate it; still, when the jury was asked to find the market value after the injury was inflicted, the answer should not have fixed the market value by the use that could have been made' of the land, but should have found whether the land had any market value, regardless of the purpose to which it might be appropriated. There was evidence to the effect that the land had resumed its pristine vigor, and, if that be true, it would not be a just measure of damages to give appellee the full value of the land. A proper measure of damages should be, and is, one which gives compensation, and it should not be made the means of speculation. It cannot be contended with any degree of propriety that temporary destruction of the fertility of the land should entitle ap-pellee to a recovery for the full value of the land, and in inquiring into the damages weight should be given to facts which tend to show a renewal of the fertility of the land and a return to its normal state. The land might have been rendered for a while utterly unproductive, and have no market value for a time for agricultural purposes, but have a market value for purposes of speculation or other purposes.

[2, 3] It is true, as stated by appellee, that the measure of damages in cases of this character is the difference in the markpt value of the land immediately before and immediately after the injury, but in arriving at that market value the permanency or temporary nature of the damage should be considered. Suppose for instance land is flooded, but in a few weeks the water disappears, leaving the land as good as it was before the flood; if the fact of the abatement of the water is not considered, but the damage measured by the market value of the land as soon as flooded, a person might be made to pay the full value of the land, and the owner in a few weeks have his land in fine condition. In order to arrive at the market value of the land after the water had soaked into it appellant should have been allowed to prove that the land has regained its normal i state. That proof might throw some light | | | on the market value at the time of the injury.

The court recognized the fact that the jury should take into consideration the renewal of the fertility of the land in arriving at the permanency of the damages, for he so instructed them, but, when some of the proof was offered of the fact of the land regaining its fertility, it was excluded by the court. Under the facts proven, the court should not have rendered judgment for the full value of the land.

[4] Undoubtedly it was a serious injury to impair the usefulness of the land for any length of time, but an injury that lasts for a time only, even though it be several years,, cannot be deemed permanent, and the court erred in so instructing the jury. Permanency carries with it the idea of something that is durable, lasting, that never changes. An. injury to land may be in its nature permanent as distinguished from the injury to the crops on it, but it might as well be said that eternity is a greater lapse of time as to say that a thing is permanent that is cured in a few years.

The fourth and fifth assignments of error-are overruled, and the sixth assignment is too general to be considered.

[5] We sustain the seventh and eighth assignments of error for reasons hereinabove given. The jury should, in order to arrive at the permanency of the injuries, have been required to answer as to the condition of the land at the time of the trial, or before that time. The verdict should have been reached by taking into consideration the time for which the injury lasted.

We have considered all errors that are likely to be committed on another trial, and,, for the reasons given, the judgment is reversed, and the cause remanded.

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